STATE OF WISCONSIN
LABOR AND INDUSTRY REVIEW COMMISSION
P O BOX 8126, MADISON, WI 53708-8126 (608/266-9850)

JON P GOULET, Complainant

SENIOR CITIZENS EMPLOYMENT & TRAINING, INC., Respondent

FAIR EMPLOYMENT DECISION
ERD Case No. CR201001563

An administrative law judge (ALJ) for the Equal Rights Division of the Department of Workforce Development issued a decision dismissing the complaint in this matter on the grounds that the complainant had failed to appear at his hearing.

The applicable statutes provide that a party who is dissatisfied with the findings and order of the examiner may file a written petition with the department for review by the commission of the findings and order, that if no petition is filed within 21 days from the date that a copy of the findings and order of the examiner is mailed to the parties the findings and order shall be considered final, and that if the commission is satisfied that a petitioner has been prejudiced because of exceptional delay in the receipt of a copy of any findings and order it may extend the time another 21 days for filing the petition with the department. Wis. Stat. § 111.39 (5). Pursuant to this, the administrative rules of the ERD provide that "[t]he petition for review shall be filed within 21 days after the date that a copy of the administrative law judge's decision and order is mailed to the last known addresses of the parties," Wis. Adm. Code § DWD 218.21(2), and the administrative rules of LIRC provide that "[a]ll petitions for commission review shall be filed within 21 days from the date of mailing of the findings and decision or order...", Wis. Adm. Code § LIRC 1.02. Petitions for review of decisions of the ERD which are filed by mail are deemed filed only when received by the ERD, see, Wis. Adm. Code § LIRC 1.025(1), Wis. Adm. Code § DWD 218.02(6).

The administrative law judge's order of dismissal in this case was issued and mailed to the parties on November 2, 2011. Given the 21-day appeal period described above, the last day on which a timely petition for review could have been filed was therefore November 23, 2011. However, no petition for review was filed by that time. Thereafter, on December 12, 2011, the ERD sent the parties a letter stating that the case was being closed because no timely petition for review had been received. Then, on January 9, 2012, the ERD received, by mail, a number of documents from the complainant. This was treated as an attempt to petition for commission review, and the file was forwarded to the commission.

The materials received by the ERD from the complainant on January 9 consisted of:

The first of November I received a letter indicating I did not attend a hearing on this case in Eau Claire, WI that was held and I did not appear on or around October of 2011. I don't have the letter because I forward the letter to law Administrative Judge O'Brian in Eau Claire asking for his opinion. However, that letter is enclosed, as well as, my last response to you after receiving a letter from Mr. Robarge who I believe works out of the State of Wisconsin DWD in Madison in November of 2010 indicating his opinion there is no substantiated proof of my complaint. Henceforth, I responded with the enclosed letter dated November 3, 2010. A second more detailed letter which is also enclosed was sent November 5, 2010. Other than that I received e-mails from DWD Madison office asking Mr. Robarge the status of the case, whereby I heard nothing. I responded to those e-mails until I got the letter indicating I did not show up for a hearing in Eau Claire. At that juncture, I sent another e-mail with the same no response to the DWD Equal Rights Division in Madison.

Finally, I received another letter December 12, 2011 from Elizabeth Anderson who I have in my complaint form who is the director of the Eau Claire Senior Citizens workforce that the case is closed.

My position is that I never received a letter indicating a hearing date which was held in Eau Claire sometime in October 2011 and need to reopen the case based on that. It should be noted that I had moved from 7051/2 E. Grand Av. and left a forwarding P. O. Box 1881 - Eau Claire, WI 54702.

We met at the Mouse Trap a few weeks ago and talked about John McCarthy and people we might know.

In any event, I could not find your address so I dropped this letter off at your home and I want to ask you if you would look it over and see if anything can be done. I feel my request is legitimate because I moved October 8th from 7051/2 E. Grand Av. 54701 and gave a change of address to the post office.

My new address is a P. O. Box as indicated above. I believe the letter that was sent to me from the Equal Rights Division with the hearing date might have got lost in that two week period when you change addresses and start receiving your mail at your new address. When you fill out the change of address notification your mail can become lost in cyber space during the time you change addresses. The only other explanation is the tenant at my old address took the letter because I have a different complaint against her with the equal Rights Division and she might have opened it being curious and thinking it might have something to do with her.

In closing, please look the enclosed information over and send a note along with the original letter back to me with your number so we could talk.

p.s. you have my permission to look the case over and give me your opinion (see attached case # on the letter from the Equal Rights Division.

It is clear that there was no timely petition for commission review filed as to the ALJ's November 2, 2011 Order of Dismissal. Under Wis. Stat. § 111.39(5)(b), the only way in which the commission can take any action in a case where the petition for review is untimely, is if it is satisfied that the complainant was prejudiced because of exceptional delay in the receipt of the ALJ's decision, in which case it can extend the time for filing another 21 days. Therefore, the issue in this case is whether the complainant was prejudiced because of exceptional delay in receipt of the ALJ's November 2, 2011 decision. If he was not, then the commission has no authority to do anything other than dismiss the petition.

Based on review of the materials submitted by the complainant, it appears that the complainant is not claiming that he did not receive the ALJ's November 2, 2011 order of dismissal or that his receipt of it was delayed. In fact, his statements effectively acknowledge that he received it, and that he received it on a timely basis. Thus, in his letter received by the ERD on January 9, 2012, he states:

The first of November I received a letter indicating I did not attend a hearing on this case in Eau Claire, WI that was held and I did not appear on or around October of 2011.

The complainant's statement that it was on "the first of November" that he received a letter about not attending his hearing, is obviously mistaken, since it is undisputed that the ALJ's Order of Dismissal was mailed out on November 2. That November 2 Order of Dismissal was the only document sent to the complainant having to do with his failure to appear at the October hearing. The commission finds it most likely that the complainant's reference to "[t]he first of November" was a ballpark guess he made later, based on his recollection that it had been in early November that he received the document about his failure to appear at the hearing. Considering all the circumstances here, it is clear that the above-quoted statement in the complainant's letter represents an acknowledgment that he received the order dismissing his complaint for failure to appear at the hearing, in early November, shortly after it was mailed.

Additionally, there is another indication in the complainant's submissions that he received the ALJ's Order of Dismissal very soon after it was sent out. The complainant stated that after receiving the letter indicating he had not appeared at the October hearing, he forwarded it to "law Administrative Judge O'Brian in Eau Claire" asking for his opinion. His letter to O'Brian (a copy of which is included in the materials filed by the complainant on January 9) was dated November 7, 2011. This establishes that the complainant had received the copy of the ALJ's November 2 Order of Dismissal, by November 7.

For the reasons stated above, the commission finds that the petition for commission review was not timely and that the petitioner was not prejudiced because of exceptional delay in the receipt of a copy of the decision, within the meaning of the applicable statutes. It therefore issues the following:

DECISION

The petition for review is dismissed.

Dated and mailed February 21, 2012
gouletjon . rpr : 110 : 5 

BY THE COMMISSION:

/s/ Robert Glaser, Chairperson

/s/ Ann L. Crump, Commissioner

/s/ Laurie R. McCallum, Commissioner


NOTE: The commission has considered the fact that the complainant apparently did respond to the ALJ's November 2, 2011 Order of Dismissal, by sending a letter to an "ALJ O'Brian" on November 7, 2011 which requested to "reopen" his case. However, that letter does not give the commission any power to act in this case. There is no "ALJ O'Brian" in the Equal Rights Division. There is an Attorney Michael D. O'Brien employed as an Administrative Law Judge in the Eau Claire office of the Division of Hearings and Appeals of the Wisconsin Department of Administration, and it seems reasonable to infer that the complainant's letter was sent to this individual. But, a letter to an employee of the Division of Hearings and Appeals cannot suffice as a petition for review by LIRC, because such petitions must be filed with the Equal Rights Division. See, Wis. Stat. § 111.39(5)(a), Wis. Adm. Code § DWD 218.21(2). The "Notice of Appeal Rights" that accompanied the ALJ's decision in this matter made it clear that a petition for review had to be sent to the ERD, providing the addresses of the two offices (Madison and Milwaukee) of the ERD to which a petition could be sent.

The commission has also considered the fact that the complainant claims that after he "got the letter indicating [he] did not show up for a hearing in Eau Claire..., [he] sent another e-mail with the same no response to the DWD Equal Rights Division in Madison." There is no record in the file in this case, of any e-mail from the complainant to the ERD after the issuance of the ALJ's November 2, 2011 Order of Dismissal. However, even if there were such an e-mail, it also would not give the commission any power to act in this case. Petitions for commission review cannot be filed by e-mail. See, Wis. Adm. Code § DWD 218.25(2), Wis. Adm. Code § LIRC 1.025(2), Farvour v. County of Winnebago, ERD Case No. 200102173 (LIRC, Nov. 13, 2003). The "Notice of Appeal Rights" that accompanied the ALJ's decision in this matter indicated that a petition for review had to be "mailed, faxed or brought to the Equal Rights Division" and it provided only street and post office box addresses and FAX numbers.

 

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uploaded 2012/02/22